Wallace v. Barker

The opinion of the court was delivered by Royce, J. The statute of March 7, 1797, authorizes the levy of a writ of execution “ upon the proper goods or chattels of the debtor — Always excepting, one cow, and such suitable apparel, bedding, tools, arms, and articles of household furniture, as may be necessary for upholding life.” To these exceptions others have been specifically added from time to time. And the statute of March 2. 1797, which authorizes the attachment of goods and chattels on mesne process, has been construed to contain on implied exceptions of all property exempted from the writ of execution. It is quite obvious that the article in question is not to be ranked among any of the statutory exceptions. It was in no sense a tool or implement of the debtor’s trade, but a mere sign or symbol of it. But exceptions must exist independently of the statutes, and the question is, whether any such apply to the present case. In deciding this question, we must keep in view the nature and object of an attachment, as authorized by our law. It is a sort of sequestration of property, for the eventual security of the attaching creditor. The property thus taken is to remain in the custody of the law, to await the determination of the suit in which it is attached. And in most instances this is expected to require a considerable period of time. Hence an exception arises in favor of property which is peculiarly perishable in its nature ; as fresh meat during a portion of the year, Leavitt vs. Holbrook, 5 Vt. R.405, —fresh fish, as decided by this court in the county of Caledonia a few terms since, — green fruits and the like, whenever it is manifest that the purpose of the attachment cannot be effected, before they will decay and become worthless. As the policy of the law is not to authorize the destruction of property, but to enable the party attaching to obtain security for his claim, it impliedly forbids an attachment in these cases. The same principle applies, when the thing sought to be attached is in such a stage of manufacturing process, that its removal by an officer, or the suspension of care and labor upon it by the owner, would occasion a loss of the prop [444] erty, or a great damage to it. It was accordingly decided in the case of Bond vs. Ward, 7 Mass. 123, that hides in a tanner’s vat were not subject to attachment. It is insisted that the principle of exemption extends to all cases, where the thing attached could be of no substantial benefit to the creditor as a security ; or where it could not be expected to sell for a price bearing nny reasonable proportion to its cost, and its real ór imaginary value to the owner. Admitting this proposition .to be just to some extent, yet any general rule of exemption founded upon it must be difficult of application, and of a doubtful policy. Indeed, the power of the court thus to limit and qualify the creditor’s right under the statute may well be questioned, when the right can be exercised without injury to the property attached. The present case, however, does not require us to lay down any precise rule upon tbe subject, since the article in question appears to have possessed a well known value. It was equally appropriate for any-one of the trade, and required no alterations on being removed from one shop to another. The papers show that it was sold for about twenty dollars on .the creditor’s execution. This is evidence of its value as an article of sale, at least among particular tradesmen. In these respects it differed entirely from the ordinary signs of trade and professions. These are known to be of little or no intrinsic value, and useful only to those for whom they are made. We are all agreed that this piece of property was liable to attachment. Judgment of county court reversed, and new trial granted. [445] CALEDONIA COUNTY, March Term, 1836. ' Present, Hon. CHARLES K. WILLIAMS, Chief Justice. Present, Hon. STEPHEN ROYCE, ) “ SAMUEL S. PHELPS, > Assistant Justices. “ JACOB COLLAMER, >.